Debique v Ministry of Defence
The ruling in this case demonstrates that if an employee refuses the offer of an internal transfer to a new role, they fail to mitigate their loss and are not entitled to claim for loss of earnings.
FACTS
Ms Debique served as a Foreign and Commonwealth soldier in the British Army. Following the birth of her baby, as a single mother, she felt she could not continue with her existing role due to detrimental treatment as a result of her childcare responsibilities. She served notice of termination and brought claims for both indirect race and sex discrimination against the Ministry of Defence (MOD).
Before the case was heard, the MOD offered to transfer Ms Debique to a unique role in which she would not be deployed on active service for 5 years and would be working in a unit with enhanced childcare facilities. She rejected this offer and continued with her claim.
DECISION
The Tribunal and Employment Appeal Tribunal (EAT) upheld her claims for discrimination and she was awarded £15,000 for injury to feelings. However she was not awarded any loss of earnings as she had unreasonably refused the MOD's offer of an alternative post and re-engagement and therefore she had failed to mitigate her loss. Although Ms Debique argued that the reason she refused the post was because she had become disillusioned with the Army, the Tribunal found that the real reason she had rejected this offer was because she did not believe a five year posting without deployment on active service could be guaranteed. The Tribunal took the view that even if she had doubts, she should have taken the role to "see what happened" and would be at liberty to raise a further Tribunal claim if there were any difficulties.
Ms Debique appealed against the decision not to award her loss of earnings.
The EAT had to consider whether there were avenues available to Ms Debique to mitigate her loss and whether her refusal to accept these was unreasonable. Even though the offer of an alternative role came from the wrongdoer (MOD), it found that the offer was made in writing in clear and formal terms and gave reassurances that she could continue her military duties combined with her childcare responsibilities.
On this basis, it decided that she had unreasonably rejected the offer and should not therefore be entitled to loss of earnings.
PRACTICE POINTS
This case shows the danger to an employee of rejecting an employer's offer of re-engagement unreasonably. Whilst in some discrimination cases, it would be entirely reasonable for an employee to reject an offer from the discriminator (employer), in this case however that was not the case. Ms Debique had not completely lost trust and faith in the army and it was significant that the new role would have addressed all her concerns.
This decision is useful to employers as it shows that even once a claim has been lodged, an employer can potentially reduce its liability if it can find a way to re-engage or transfer that employee back into the business. An unreasonable refusal may result in a reduction or absence of a loss of earnings award. Each case will of course depend on its own particular facts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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